Appeal No. 2004-1939
Application 10/120,497
We have carefully reviewed the record on this appeal and based thereon find ourselves in
agreement with supported position of the examiner that, prima facie, the claimed gasoline
composites encompassed by appealed claim 44 would have been obvious over the combined
teachings of Jessup, Kaneko and the Phase 3 reformulated gasoline standards to one of ordinary
skill in this art at the time the claimed invention was made. We add the following to the
examiner’s analysis.
We find that Jessup would have disclosed gasoline composites which can be free of the
oxygenate additive MTBE, and have an octane value which can be in the range of 87 and above
(e.g., col. 4, ll. 60-62, and col. 5, ll. 3-5, cols. 7-8 and 11-12). We determine that one of ordinary
skill in this art would have recognized that gasoline composites disclosed by Jessup can fall
within the Phase 3 reformulated gasoline standards if the sulfur content was within the specified
flat limit, averaging limit or cap limit ranges, that is, zero to the specified upper limit in ppmw,
when using the California Predictive Model (see above note 4). We note that the averaging limit
range for sulfur is zero to 15 ppmw.
We notice the well known fact that one of ordinary skill in this art would have desired to
reduce the amount of sulfur in gasoline composites for a variety of reasons known in the art.
Indeed, Kaneko would have disclosed that in similar gasoline composites to those of Jessup, the
sulfur content is preferably below 30 ppmw, and more preferably under 20 ppmw, and illustrates
gasoline composites that contain 2, 3 and 4 ppm sulfur (col. 3, ll. 16-19; col. 8, Tables 2-4). We
find that Kaneko’s preferred sulfur range under 20 ppmw is the range of the flat limit and
encompasses the range of the average limit of the Phase 3 reformulated gasoline standards, while
the upper limit of 50 ppmw sulfur does fall within the cap limit range. However, the illustrated
sulfur contents fall within the bottom of the range of the average limit of sulfur.
Based on this substantial evidence, we find that, prima facie, one of ordinary skill in this
art would have prepared gasoline composites by routinely following the teachings of Jessup
using the California Phase 3 Predictive Model and the requirements of the Phase 3 reformulated
gasoline standards, and thus would have reasonably prepared such composites having a sulfur
content falling within the range of the average limit of the Phase 3 reformulated gasoline
standards, including the lower end of that range as shown by Kaneko, that is, below 10 ppmw.
See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (“[W]here general
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